SENATE.]

Turkish Commission.

[FEB. 25, 1831.

now, for the first time, violating the constitution, when he Here, however, a reliance is placed upon another ground, had taken such examples for his guide, and squared his covering all the appointments made to treat with the conduct by the rule of Washington. Mr. F. would not Powers on the Barbary coast. It was said they were Barpress the subsequent appointments made by the succeed barian Powers, and not to be treated as civilized nations. ing Presidents from Virginia, as all had been alluded to, Indeed! Barbarian Powers! Foreign Barbarian Powers, except the remarkable one made by Mr. Madison in 1816. certainly not dependents on the United States. The William Shaler and Isaac Chauncey were appointed on the treaties formed by the commissioners mentioned made the 24th of August of that year, commissioners to alter the United States, for a time, their tributaries. As this was a treaty then recently made with Algiers by Shaler and grave constitutional question, to be tried by the language Decatur, under a commission to them and Captain Bain-of the instrument itself, Mr. F. would ask, with due rebridge. This alteration was made by treaty on the 23d of spect, why the gentleman travelled out of the instrument December, 1816, and ratified during Mr. Monroe's ad- to look into the character of the foreign Power with whom ministration, 1st of February, 1822: yeas, 42--nays, none. negotiation was directed by the President, and what deMr. F. had both commissions in his hands; they were full gree of civilization in a foreign nation was necessary to powers under the sign manual of the President and broad bring the agents sent to them within the controlling seal of the United States, in all respects like the powers power of the Senate. The honorable Senators did not as granted to Biddle, Offley, and Rhind. In these instances yet affirm that the treaties made with them were not bealso, the Virginia President did not ask the advice and con-yond or below the Senator's orbit. But Mr. F. did not sent of the Senate, and escaped, like his great predecessor, discover any reason for the participation of the Senate in all censure and remark. The honorable Senators, how- the ratification of the treaty, which was not applicable to ever, admit that all these things have been done, and, as the appointment of the negotiators, if they were, as conthey say, rightfully done; and their opinions against this tended for by the gentlemen, officers in the technical Turkish negotiation rest upon the correctness of certain language of the constitution. In their zeal to find them, distinctions they have presented to the Senate. They ad- they have struck upon distinctions much too broad for mit that the former Presidents, beginning with General their purpose. Supposing the distinction sound, the disWashington, have, during the recess of the Senate, right-tinction covers the Turkish negotiation, and upon their fully appointed commissioners to treat of peace and com- own doctrines the administration stands justified. Take merce with the Barbary Powers, whose names were not the Algerines, for example's sake: how do they differ from sent to the Senate at subsequent sessions. They admit that the Turks? The European would call the Algerines barMessrs. Gallatin, Bayard, and Adams were rightfully ap-barians-so he does the Turks: the Algerines are not pointed during the recess of the Senate to treat with Great christians, nor are the Turks; the Algerines are MahomeBritain under the Russian mediation. They admit that the tans, so are the Turks. In the event of a rupture, the President has rightfully negotiated treaties in Washington Algerines imprison the consuls of the Power with whom during the recess of the Senate, and during the sessions of they are at war, reduce its subjects or citizens to slavery, this body, without asking its advice and consent, by the in- and confiscate all the property belonging to the enemy's strumentality of the State; and, admitting all this, they nation within their power-so do the Turks: on the prinaccuse the President of the United States of disregarding ciple of the lex talonis, the Algerines are not entitled to the constitution, for having negotiated, through the in- the benefits of the rules of honorable war--nor are the strumentality of secret agents, a commercial treaty with Turks. The gentleman from Virginia [Mr. TAZEWELL] Turkey. says the Turks have been a formidable power before the American Government had existence-so have the Algerines, although their Dey is now kicked about with as First. On the ground that all the previous appointments little ceremony as a Cherokee chief. How long is it since of this kind were made during war. A state of war, in Algiers has made the most formidable nations of Europe their judgment, justifies during the recess the appointment tremble? If antiquity of strength is of any importance in of commissioners to make peace; but does it justify, also, this discussion, the barbarians on the coast of Africa, so the failure to ask a confirmation of the appointment of called while they were teaching Europe civilization, have these commissioners at the succeeding session of the Senate? been terrible for centuries. They foiled, in all the pride It was not so contended when Mr. Gore's resolutions were of his strength, the grandson of that monarch under whose discussed. This resort to the war power is, however, patronage this continent was discovered. He who humcertainly convenient, as carried to its legitimate extent; it bled France, was almost master of Europe, was himself renders any participation of the Senate in the business of reduced to extremity by these now despised Barbarians. re-establishing the regulations of peace altogether super- Mr. F. was unable to discover any tangible distinction beAuous. It proves too much for the gentleman's purpose. tween the Mahometan Powers of Africa, and the MahomeIt involves besides the truth of one of these propositions, tan Powers of Europe and Asia. Turkey was distinguished to both of which Mr. F. expressly dissented. Either from the others in the eyes of Europe, but that distinction that the sole power of the President over the foreign re- was founded solely upon the geographical position of a lations of the United States was enlarged, or the con- part of the Sultan's dominions--a position that could not trolling power of the Senate over those relations dimin-be important in the question before the Senate. Occupyished, by the state of war--propositions far more dan- ing an interesting and imposing position in Europe, the gerous in their consequences than any that could arise from European Governments condescended to consider the the practice of appointing secret confidential agents in ne- Turkish Government as part of the European system. It gotiating treaties of commerce. Mr. F. did not believe that was one of the make-weights in the balance of powerany gentleman would risk his reputation as a statesman, that chimera to which millions of lives had been sacrificed (if he might use the term without offence to the Senator —which had enabled the wily diplomacy of artful despobehind him, [Mr. TYLER,] who had honored it with a pe- tism to stay for centuries the onward march of reason and culiar sneer,) seriously contending that either was true; liberty. In no other respect is there a distinction made yet, he submitted with confidence to the judgment of the between the Turks and other Mahometan Powers. War Senators, if one of them was not the inevitable result of and peace, and treaties of commerce, are made with all, the distinction taken by the gentleman from Virginia. and with all the nations of the world regulate their interThe facts in the cases referred to did not bear the gen-course as if they were christian Powers. Until the gentlemen out, even if their distinction was just; all the ap- tleman can find a stronger distinction than this, it must be pointments made, were not made during a state of war. admitted that the practice of former administrations in their

The honorable Senators unite in resting this apparent inconsistency of opinion on these grounds:

FEB. 25, 1831.]

Turkish Commission.

[SENATE.

intercourse with the Barbarian Powers, covers the case of be accomplished. One of the Senators from Virginia this secret negotiation with the Barbarian Turk. [Mr. TYLER] had dwelt with strong emphasis upon the The gentlemen had not been more fortunate in main- character Mr. Rhind gave himself in a letter to the Secretaining the other ground chosen by them. Pressed by tary of State. Suppose that the respectable and worthy, the force of the precedents urged of treaties made without man had, in the vanity of recent, and, as he honestly bethe Senate's knowledge, by the instrumentality of the Se-lieved, important success, considered himself as a high cretary of State, during the recess, and during sessions of diplomatic character, his view of it did not determine his this body; treaties of commerce, of indemnity, of claims character; and that could not, from the papers before the due to and by the United States; for the settlement of dis- Senate, be mistaken. To the often repeated question, of puted boundaries, and for cessions of extensive territory, how did these agents differ from public ministers, Mr. F. the Senators urge that the negotiators acted in these cases saw but one answer--they were not accredited by the as the agents of the President, by virtue of their commis- heads of the foreign Government with whom they transsions as Secretaries of State. What was there in the com-acted business--they carried no letters credenti?', and mission of the Secretary of State that made him, ex officio, were entitled to no privileges. It was not Mr. I.' pura negotiator? What was there in the law creating this pose, nor was it necessary for the vindication of the adoffice that warranted this distinction? There was certainly ministration, to sustain the propriety of this distinction nothing, either in the commission or act of Congress. between agents and ministers; he had accomplished his There was a mistake made by the gentlemen destructive object by proving that it had been early and constantly of their conclusion; they assumed as a fact what did not made, and by no Presidents more frequently than those exist. The Secretaries of State, acting as the agents of the who were given to us by Virginia. President, did not negotiate by virtue of their commissions The honorable Senator who led the way in this discusas Secretaries of State-they were appointed by the Pre- sion, [Mr. TAZEWELL,] not satisfied with having charged sidents, under their sign manual and the broad seal of the the cabinet with a palpable violation of the constitution, United States, for the special purpose of making the trea- seemed determined to make the impression that there had ties formed by them severally; they had full powers, such been an insidious design in the manner of asking for the apas were granted to Biddle, Offley, and Rhind. There propriation to pay the Turkish commissioners. He imagined was no difference but this: the Secretaries in Washington, the Secretary of State wished to entrap the Senate into a in the face of the Senate and of the nation, negotiated; sanction of the original appointment of these confidential the Turkish commissioners transacted their business in agents. "The Secretary knew," the gentleman said, secret at Constantinople. What constitutional principle" at the beginning of the session of Congress, that this apjustifies the appointment of an agent here, the Senate sit-propriation would be wanted. The Secretary asked it ting, publicly or privately, to form a treaty with a foreign not of the House of Representatives, where appropriations Power, that will not justify the appointment of a secret ought properly to originate; but, at this late day of the agent to form a treaty, if practicable, in London or Con- Senate, through their Committee of Finance." No desire stantinople? The place where the power granted is to be to receive a sanction of the appointment of these commiscarried, cannot affect the right of the President to grant sioners could exist, after the treaty formed by them hadthat power. Suppose the Turkish Government had sent been ratified, without the slightest intimation from the a secret and confidential agent to Washington, and a treaty Senate that there had been any irregularity in the manhad been concluded with him by the Secretary of State, ner of appointing them. The history of the transaction as the agent of the President, can it be reasonably pre- is an ample refutation of this ungenerous charge. The tended that the appointment of the Secretary as agent Turkish treaty was not disposed of until the general apwould not have been a constitutional exercise of power propriation bill had passed the House of Representatives; by the President, according to all past usage? If it would the appropriation for the payment of the service renderhave been, casuistry itself could not condemn the appoint- ed could not be asked for until the question on that treaty ment of the secret agents who had been sent to Constan- was decided. here; and when it was decided, the approtinople. priation was requested where only it could properly be Mr. F. believed the conduct of the President strictly made. The assertion of the gentleman, that appropriation correct, if it could be shown that the negotiation with bills ought properly to originate in the House of RepreTurkey ought to have been kept secret. The motives for sentatives, was not American in its character; it was bor

a secret negotiation were to him obvious and satisfactory. rowed from England. The House of Commons of the The United States could have no desire for any political English Parliament asserts its right to originate all money connexion with Turkey; a commercial treaty had long bills; the House of Representatives of the Congress of the been considered important, and it had always been deem- United States had no exclusive right to originate any bills ed prudent to seek to establish commercial relations with but those for raising revenue; and recent circumstances that Government by informal secret agents. It has been were well calculated to raise a doubt of the propriety of thought that an informal agency would be more likely to that restriction upon the power of the Representatives of succeed than a public minister; the mission of a confiden- the States. Even revenue bills could be amended in the tial informal agent would not create a belief that we were Senate, and the appropriation under discussion could be too anxious to succeed, while his secret negotiation would properly made if the English rule was to govern our pracnot be liable to be defeated by the influence of the great tice. There was in this case a peculiar propriety in asking Powers who were represented at Constantinople. It was the appropriation of the Senate. When these commisapprehended that some of the European Governments, sioners were appointed by the President, he might have none of whom dislike to monopolize power and commerce, paid their services out of his contingent fund; but scrumight not be pleased to see Jonathan's long sickle thrust pulously desirous not to use the discretion over it vested into the golden harvests that grow on the borders of the in him, when it was not absolutely necessary, he directed Euxine, and might possibly use some little artifices to pre- the commissioners to be told, "your expenses shall be paid vent it. There was some pride, too, in refraining from out of the contingent fund, and such compensation for a public effort to make a treaty when success was so pro- your services as Congress may allow." Now, sir, to have blematical, and with this pride was mingled no small asked this appropriation of the House of Representatives portion of Yankee economy. A public mission to the in the first instance, would have been to apply to persons Turkish Government, successful or unfortunate, was al- who had not, and cannot have, until the ratifications of the ways expensive, and there was a wise determination not to Turkish treaty are exchanged, the means of judging expend the public money, if the object in view could not what sum ought to be paid for the service rendered. The

SENATE.]

Turkish Commission.

[FEB. 25, 1831.

Senate does know, and no doubt the House will so far and, shortly after, the liberty of navigating it was successrely upon our knowledge and discretion as to approve the fully demanded by, and yielded to, the other commercial sum that may be fixed upon here. The Executive is un- European Powers.

fortunate, when his scrupulous anxiety to consult the In 1803, 815 vessels took in cargoes in the Russian representatives of the people, and of the States, in the ports of the Black Sea: 552 at Odessa, 210 at Taganrog, expenditure of public money, gives birth to a charge of 23 at Caffa, 19 at Kosloo, 7 at Sevastopol, and 4 at Cherinsidiously attempting to make the Senate connive at a son. Of these, 421 were Austrian, 329 Russian, 18 Raviolation of the constitution, and approve of his usurpation gusan, 16 Ionian, 15 French, 7 English, 6 Idriots, and 3 of their rightful power. Spanish.

The services rendered by the commissioners had been In 1817, 1925 vessels entered the port of Odessa alone: slightly spoken of. Some supposed that a treaty with 480 Russian, 188 Austrian, 154 English, 43 French, 18 Turkey was of no consequence, since the treaty of Adri- Spanish, 49 Swedish, 31 Sardinian, 65 Turkish, 7 Danish, anople between Russia and Turkey had opened the chan-7 Neapolitan, 2 Sicilian, and 881 Russian, engaged in the nel into the Black Sea to all nations. It was true, that, by coasting trade. In the same year, 400 entered the port the stipulations of that treaty, the Turks bound themselves of Taganrog. In 1808, there was an importation at Odessa to Russia to admit all Powers at peace with the Ottoman of 33,131 bales of cotton. In 1817, the freight of a single Porte into the Black Sea; and Russia was expressly autho- article of commerce, wheat, shipped to Leghorn from the rized to consider a disregard of that stipulation as just Black Sea, amounted to $1,350,000. All these facts recause of war. Still the treaty of Adrianople, dependent, lated to the Russian dominions: when it was taken into as it is, upon the continuance of peace between Russia view that the Turkish dominions on the borders of the and Turkey, gave the United States no claim upon Tur- Euxine included large cities, with a population exceeding key to a free passage through the canal of Constantinople: 260,000 souls, standing on the borders of rich settlements, in fact, Americans who ventured into the golden horn one of them, Trebisond, in the direct line of intercourse were not permitted to pass through the Black Sea. No with the Persian Gulf, it might be fairly concluded that doubt the Government might have solicited from the Em- the owners of our ships would find, if true to themselves, peror of Russia his interference to secure the observance profitable employment for their now almost useless proof the treaty made with him. His answer would certainly perty. The prospect of present advantage was nothing have been, I wish you to have a commerce with all my when compared to that which might be anticipated heredominions; but at present I cannot prudently go to war after. The Black Sea had been, at more than one era, to compel the Turks to fulfil this engagement. When the heart of an active and lucrative industry. Prior to the ever circumstances permit, I shall recollect and punish establishment of the Ottoman empire, its waves had been this disregard of the promises made to me. Was it not ploughed by the keels of all commercial nations. Its better to procure from the Ottoman Porte itself the right shores had been studded with populous and prosperous to a participation of the commerce of the Black Sca--a cities, and with productive settlements. Under the power right which would be independent of the state of war or of Russian despotism, which is operating as the genius of peace with Russia, than thus to have solicited the exertion civilization in that portion of the globe, it is again becomof Russian power for our benefit? The treaty of Adriano-ing the centre of attraction to commercial enterprise. ple, without doubt, facilitated our success. That our The Russian dominions, from the mouths of the Danube object could not have been reached without a treaty, is to the ports of St. Nicholas, south of the Phasis or Rione, certain. We know that, under the Turkish construction are advancing in population and wealth with a rapidity of the treaty of Adrianople, nations not having treaties unexampled in the history of the old world, and rivalled with Turkey are not admitted into the Black Sea--that only by the almost incredible progress of our own country. nations having commercial treaties, since the treaty of Sanguine tempers might be deceived in their estimate of Adrianople, have sought admission under the protection the benefits to the country to be derived now or hereafter of the promise to Russia, and that it has been refused; the from this successful effort at negotiation. Mr. F. believed answer made to both was, the engagement made with the country would applaud those who had made it, Russia does not alter our treaties with other Powers. The should the hopes of profit be disappointed, realized, or honorable Senator from Virginia on his right [Mr. TAZE- exceeded. WELL] had spoken of the inconsiderable benefits likely to Mr. F. could not dismiss the subject of this appropriaarise out of the commerce to the Turkish and Russian tion, without again remonstrating on the course of the settlements on the Black Sea. There was no recent infor- Senators from Virginia; against the unusual-the antimation on which a certain calculation could be made of American substitution of the irresponsible for the responthe benefits that would probably result to the country sible. There was no head too high, no bosom too sacred, from this negotiation. The commercial community would, to be reached by the stroke of patriotism, if justice deas the most intelligent merchants believed, profit by it. manded the blow. Mr. F. spoke not to shield individuals; The navigating interests certainly would, unless the owners he remonstrated against the erroneous and dangerous of ships had lost their ancient skill and enterprise. In the principle acted upon, from public considerations. present depressed condition of the navigating interest, not Virginia. He deprecated it for the honor of the Anperishing under the paralyzing influence of our internal cient Dominion, from whose soil he sprung; for he, too, policy, the administration had done its duty in looking to was a Virginian. Virginia had heretofore struck at the our external policy for its relief. Mr. F. had, with some loftiest objects; the lightning of her indignation had shiverdiligence, sought for accurate information. Although his ed the gnarled oak-had not glided through its branches labor had not been as well rewarded as he could have to blast the saplings that grew around its noble trunk. wished, he had yet collected some facts, gleaned from the The Chief Magistrate and his Secretaries stand upon their history of past years, which would afford gentlemen the respective responsibilities; let them be judged by facts, means of approaching the truth in making an estimate of and upon facts only; and each in his respective sphere the probable benefits of a free commerce into the Black was ready to receive, and submit to the judgment of the Sea. people. If any or all of them deserve condemnation, let them perish; by Mr. F. they would fall unpitied and unwept.

After being closed by the Turks upon all the world for near three hundred years, from 1476 to 1774, the passage of the Black Sea was opened to Russian vessels by treaty in 1774. On the 25th of June, 1802, by a treaty formed at Paris, the French flag was admitted into the Black Sea;

It was

Mr. SMITH, of Md., said he rose because he did not perceive that any other Senator was disposed to speak on the subject, and because he thought it his duty, as chair

FEB. 25, 1831.]

Turkish Commission.

[SENATE.

I

man, to sustain the amendment proposed to the appropri- of the second, until this time. I consider both those ation bill by the Committee of Finance. What is that powers as admitted. They may have been mooted. amendment? said Mr. S. Simply an appropriation to will not say they have not. If they ever had been, it has pay certain persons employed by the late President to totally escaped my recollection. My construction of the negotiate with the Ottoman Porte, in which they had been constitution is, "That ministers to foreign nations, is an nearly successful; and to pay certain other persons appoint- office created by the constitution, and not by law." The ed by the present President, who had completely suc- article says, "that the President shall have power to ceeded in making an excellent treaty with the Porte. appoint ambassadors, and other public ministers, by and Both commissions had similar powers and similar instruc- with the advice and consent of the Senate." Again, he tions. The treaty has been confirmed by the Senate; has shall have power to fill up all vacancies that may happen been highly approved; and the question is, will you pay during the recess of the Senate. I contend that the office for the labor actually performed? An amendment has of minister is an original vacancy, and that it can be filled been offered by a Senator, [Mr. KANE,] to apply a sum in the recess of the Senate, to any place that, in the mind fully adequate to the object in aid of the contingent fund, of the President, a minister may be required, by the exito enable the President to remunerate the parties in such gency of the case. If the Senate think that such an manner as he may think proper. Either mode will be exigency does not exist, they can reject the nomination, equally agreeable to me. All that the committee require which must be sent to it on the first session thereafter, is, that the persons employed shall be paid; and they are and this is the power of the Senate; more than that they willing to adopt the amendment proposed, as they find have not, and, in my opinion, that power is amply suffithat amendment most approved of by the Senate. It is cient for the correction of any probable evil that might proper, however, for me to state, that the committee had arise from such a power. I will state a case. We have had before them both modes of remuneration, and, after never had a minister to Austria. The President might, in consideration, proposed bringing the subject before the my opinion, send, in the recess, a minister to that court. Senate in a substantive form, so that all who read might He has, I think, the power under the constitution, and we understand the object, and because they deemed it to be have the power to reject. Am I alone in this opinion? more consistent for Congress to designate what they No, sir, my learned friend from Louisiana holds the same. meant to pay to each person, than to leave to the Executive We were both fellow-laborers on the democratic side a discretion to allow what they pleased. The Senator from long time past, and both agree that it had been a received Georgia has shown a precedent in the case of Mr. Rodney, opinion. Have I, Mr. President, no other authority? who, it was determined by Congress, should be paid from Yes, sir, that of the great apostle of the democratic party, the contingent fund, and I acquiesced. Mr. Jefferson. He gave a practical illustration of his I Ittle thought, Mr. President, that a constitutional opinion; and, with all proper deference to the Senators question would or could have been raised upon a question of Virginia, I must think that he was as able an expounder to pay for services rendered; it has, however, and we of the constitution as those gentlemen. Mr. Madison was must meet it as best we can. Early in my political life, I then the Secretary of State, and must have concurred in asked a friend whether it was true that "Rhode Island was the act, which he did. We have all been in the habit of without a written constitution;" he answered that "it was believing that he was an expounder of the constitution, true;" that they did well under their charter from Charles; in whom we might safely trust; and yet the Senator [Mr. and he added, "that a written constitution was like a nose TAZEWELL] has implicated Mr. Jefferson in his charge of of wax, which could be moulded into a flat nose, a Ro- a violation of the constitution, by his appointment, in a man, a Grecian, or pug nose, and in like manner an recess, of Mr. Short to Russia, where no minister from the ingenious man might, he said, make the constitution of the United States had been before. He did appoint Mr. United States to mean something, nothing, any thing, or Short to Russia. This amply proves that his opinion was, every thing." We have seen that it has been made to "that he had the power." Ay; but, says the Senator, mean every thing, by the construction put on the words "the Senate rejected the nomination, on the ground that "general welfare;" and the very ingenious Senator from the President had not the power.' Admit it. Does that Virginia shows that he thinks that it may be made to mean contradict what I have said? No, sir; Mr. Jefferson any thing. He contends, first, that the President has not believed as I do, that he had the power, and he acted on the power to send a minister to a foreign court during the it, which is the best possible proof. But did the Senate recess of the Senate, where no minister had previously been reject it, on the ground of its being a usurpation of sent; that it is a new office which he has not the power to power? Certainly not. I was then a Senator, and know create alone; and, secondly, that the President has not that the rejection of Mr. Short was for causes and reasons the power to send a commissioner in the recess of the entirely different. The question of power may have been Senate, as a secret agent to treat with a foreign nation, incidentally mooted by some of our speakers. I will not without nominating such agent to the Senate. trust to my memory to say that it was not. But this I can Those subjects have been ably, and, to my mind, satis- say, that, if animadverted on by any Senator, it has totally factorily discussed by the Senators from Louisiana and escaped my recollection. I think it would have made Georgia; nor would I enter on those subjects, if the Sena- such an impression on my mind, that I should not have tor from Virginia had not, in a manner very pleasing forgotten it. I repeat that it was not on the question of to me, observed, that I had been consistent in my opinion power that Mr. Short had been rejected. The first time of the constitution on the first point; evidently conveying I heard that the power was doubted, was on the Panama the idea, by his manner, and by what he said, that I question, when Mr. Gore's resolutions were read. Those studied more the expediency of a measure, than the true resolutions were presented on the nomination of the commeaning of the words of the constitution. It therefore missioners sent in the recess, by Mr. Madison, to make a made it incumbent on me to state my understanding of the treaty of peace with Great Britain. I was not then a points submitted by that Senator. We are all bound by Senator. Party spirit ran high at that time; and we all our oaths "to support the constitution of the United know that those resolutions were calculated for party States." Each will, or ought to be governed by his con- purposes, merely electioneering. What was their fate? science, and by his own judgment. I meddle not with Scouted by every democratic Senator as untenable, and those of that Senator, or any other; they are their own, by some of the federal Senators. I can name three. The I bottom the opinion I shall give on the powers vested in two members from Rhode Island, and one from Delaware. the President, in part, from never having heard the first And this is the only document that the Senator has prodoubted until the discussion on the Panama mission; and duced to sustain his charge against Mr. Jefferson, for a VOL. VII.-20

SENATE.]

Turkish Commission.

[FEB. 25, 1831.

violation of the constitution—a simple resolution presented wrong, if he has palpably violated the sacred instrument -not acted on-and not sustained by the Senate. It that he has sworn to support, ignorance can be no plea; died, I believe, a natural death. Against those resolu- and this excuse for him is a more violent insult than any tions, and the opinion of the Senator, I am supported by that could be offered; at least so I understand it. But, the opinion of Jefferson, Madison, my learned friend Mr. President, has there been any violation of the constifrom Louisiana, and by the conduct of other administra- tution? The Senators who have preceded me, think not, and tions, and the decision of the Senate on the Panama ques- I concur with them in opinion. Has any President ever tion. Let the people and my constituents judge which submitted to the Senate the nomination of commissioners of us have produced the best authorities. But, on all such as those under consideration? Never: I'challenge those constitutional questions, I am the sole judge for myself. Senators to show one solitary instance. I do not confine I rest on my oath, and as my poor judgment directs. my question to Mahometan but to christian Powers, which The Senator has said, and truly said, that the constitu- if they cannot, (and I know they cannot,) then how can tion gives the same power to the President in the case of the Senator [Mr. TAZEWELL] charge the President, Gethe appointment of judges, as it does in that of ministers to neral Jackson, with having committed “a flagrant usurpaforeign nations. I agree that the power is exactly similar tion of power, in flagrant derogation of the powers of the in every respect. He then asks triumphantly, "will any Senate?" How can the Senator from Virginia urge "that man say that the President could appoint in the recess as he may like the treason, therefore voted for the treaty, many judges as he might think proper?" I answer, yes-but detests the traitor."

if he had not been restrained by law. I will state a case. Mr. President, rising so late in the debate, I have found Suppose the Senate had risen without confirming the all that I mean to say taken from me by the Senators from nominations of the first judges made by General Washing- Louisiana and Georgia, and more ably certainly than I ton; there would have been presented the anomaly of laws, would have conveyed them. I may, however, be pardonwithout judges to expound and administer them. The ed for following them, and perhaps repeating after them. President is bound by the constitution to attend to the exc- It cannot be too often urged that General Jackson has cution of the laws. Without judges that duty could not pursued the precedent set him by all, or almost every one have been performed. The constitution created the office of his predecessors. The Senator from Louisiana has of judge, and, in my opinion, it would have been the duty read to you a variety of instances of commissioners who of President Washington to appoint judges in the recess, had been sent by different Presidents, treaties made by to be nominated to the Senate, at their next session, for them, and confirmed by the Senate without any nominatheir approbation or rejection. Offices recognised by the tion, and not a word lisped of its being unconstitutional: constitution or the laws must be filled by the appointment the Senate thus confirming the constitutionality of the of the President during the recess of the Senate, when power that had been exercised. The Senator from Georthe public good requires it; and the corrective of his ex-gia has produced others. One by General Washington in ercise of this power lies in the Senate's power of rejecting. 1795. In that, the power under the great seal and the "But," said the same Senator, "we have now seven sign manual of the "Father of his Country," was given to judges; can the President appoint an eighth in the recess Mr. Humphreys, then a consul or minister resident (I of the Senate?" I answer, no: because the law has esta- know not which) at Lisbon to make a treaty with the Emblished the number, which he cannot exceed, and that peror of Morocco. Mr. Humphreys transferred his pownumber is seven. He could not appoint an eighth either in ers to Mr. Simpson, who made a treaty which became the recess or during the session of the Senate, until the the law of the land. Was either Mr. Simpson or Mr. law is altered, and an increase of the number authorized. Humphreys ever nominated to the Senate? Never, Not The Senator [Mr. TAZEWELL] has emphatically told us, a whimper of unconstitutionality. The Senate slept at not on his opinion, but positively, peremptorily, that "the their post, and now General Washington is found by the President had committed a palpable violation of the con- Senator from Virginia to be a palpable violator of the constitution in sending commissioners in the recess to make stitution. Again, Messrs. Rodney, Bland, and Graham a treaty with the Porte, without nominating them to the were sent as commissioners to the South American States Senate, in derogation of the rights of this body." This, -christian States. Were they ever nominated to the Mr. President, is a grave charge against that high officer. Senate? No, sir. The late President gave a commission What is the meaning of the word "palpable?" Johnson to Mr. Offley and Commodore Crane, to treat with the says that one of its meanings is "plain, easily percepti- Porte. Were they ever nominated to the Senate? No, ble." That is to say, so plain and easy to be understood, sir. So that Mr. Adams was also a violator; Mr. Jefferson, that he who reads must understand. Is it then so plain? Mr. Madison did the same. Mr. Monroe followed after, It appears that the gentlemen from New Hampshire, Lou-and acted in like manner. Where were the advisers of isiana, North Carolina, and Georgia, do not find it so plain; those gentlemen. Where the advisers of Mr. Monroe? they cannot, they have said, see any violation whatever, For it is well known that he acted on full advisement of nor can I; nor has any of all our Presidents been able to his cabinet. Where, I ask, were they all, that they did see it. For, sir, in all but one of the administrations the not prevent him from committing this presumed violence same act has been done. All the Presidents have, then, been of the constitution? Were they all asleep at their posts? violators of the constitution; the Senate also, for every We must conclude that none of them considered it a vioSenate has sanctioned the violation. And now, for the lation of power.

I am now

first time, it is to be understood that it is a violation; and The Senator from Virginia said that it would be a thing it is to be charged home on Andrew Jackson, as the only unheard of, unknown to the history of the world, "that one who has committed the sacrilege. Is this fair, is it a Power at war should send a minister to the Power with proper? When the Senator must have known that Gen. which it was at war." Why, Mr. President, the Senator's Jackson had pursued and acted upon the course of all his reading and mine must have been very different. Mine predecessors from Washington down, as well as on his says, that there is no event more common. own opinion. The President is the only responsible offi- reading Sismondis' Italian Republics. The small States of cer. It will not do to go behind him to attack the Secre- Italy were in almost perpetual war with each other; and tary of State, (for I think it probable that be alone was nothing more common than the sending ministers from consulted, and he alone was the adviser.) It will not do one city to the other to treat whilst war raged between for the Senator to say that he, the President, knew little them. But, sir, I will read some recent cases, some in of the subject, and acted because he was ignorant, and which we had an interest:

therefore ought to be excused. No, sir; if he has done "Preliminary articles of the treaty of peace between